Kerala High Court
Sherief vs C.M.Khamarunnisa on 16 October, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
MONDAY, THE 16TH DAY OF OCTOBER 2023 / 24TH ASWINA, 1945
CRL.REV.PET NO. 559 OF 2011
AGAINST THE ORDER/JUDGMENT CRRP 10/2008 OF THE COURT OF SESSION,
KASARAGOD
MC 49/2007 OF THE COURT OF THE JUDICIAL MAGISTRATE OF FIRST CLASS-
I ,KASARAGOD
REVISION PETITIONER/S:
SHERIEF, S/O.MOHAMMED KUNHI
THAYALPADINJAR HOUSE, THALANGARA,, KASARAGOD.
BY ADV SRI.T.G.RAJENDRAN
RESPONDENT/S:
1 C.M.KHAMARUNNISA, D/O.C.H MUHAMMED
SUBAIDA MANZIL, KELU GUDDE, RAMDAS NAGAR,, KASARAGOD -
671128.
2 STATE OF KERALA
REP. BY PUBLIC PROSECUTOR,, HIGH COURT OF KERALA,
ERNAKULAM.
OTHER PRESENT:
SMT.SEETHA.S., PUBLIC PROSECUTOR
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION
ON 16.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2
Crl.R.P. No.559 of 2011
C. S. DIAS, J.
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Crl.R.P. No.559 of 2011
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Dated this the 16th day of October, 2023
ORDER
The revision petition is filed questioning the legality,
correctness and propriety of the order passed against the
revision petitioner under Sec.3 of the Muslim Women
(Protection of Rights on Divorce) Act ( in short 'Act') in
Crl.R.P 10/2008 by the Court of Session, Kasaragod
(Lower Revisional Court). The parties are, for the sake
of convenience, referred to as per their status before the
Trial Court. The revision petitioner was the respondent
and the first respondent was the petitioner before the Trial
Court.
Crl.R.P. No.559 of 2011
Facts in brief.
2. The petitioner had filed M.C 49/2007 before the
Court of the Judicial First Class Magistrate-I, Kasaragod
(Trial Court) against the respondent, inter alia, alleging
that their marriage was solemnised on 25.6.1992 as per
the Muslim religious rites and customs. The respondent
treated the petitioner with matrimonial cruelty and she
was constrained to leave the matrimonial home along
with children. An agreement was entered between the
parties on 21.10.2005, the date on which talaq was
pronounced by the respondent, wherein, the respondent
agreed to return 50 sovereigns of gold ornaments that
were entrusted by the petitioner to the respondent. But,
there was no provision in the agreement regarding the
maintenance amount to be paid by the respondent to the
Crl.R.P. No.559 of 2011
petitioner. Hence, the petitioner prayed that an amount
of Rs. 6,43,001/- be paid as maintenance under the Act.
3. The respondent resisted the application by filing
an objection and contending that, as per the agreement,
the petitioner had relinquished and surrendered her rights
to claim maintenance. Hence, the application may be
dismissed.
4. In the Trial, the petitioner examined herself and
two other witnesses as PWs 1 to 3 and marked Exts.C1
and C2 in evidence. The respondent examined himself
as DW1 and marked Ext.D1 in evidence.
5. The Trial Court, after analysing the materials on
record, dismissed the petition.
Crl.R.P. No.559 of 2011
6. Aggrieved by the said order, the petitioner
preferred Crl.R.P. No. 10/2008 before the lower
Revisonal Court.
7. The lower Revisional Court, after analysing the
materials on record, by the impugned judgment, allowed
the revision petition and directed the respondent to pay
the petitioner a sum of Rs.1,20,000/- as reasonable and
fair provision of maintenance, Rs.6,000/- towards
maintenance during the period of iddat and Rs.1001/- as
mahar.
8. It is aggrieved by the said order that the
respondent before the lower Revisional Court has
preferred this revision petition.
9. Heard; Sri.T.G.Rajendran, the learned counsel
appearing for the revision petitioner/respondent before
Crl.R.P. No.559 of 2011
the courts below and Smt.Seetha.S. the learned Public
Prosecutor appearing for the second respondent-State.
10. Is there any illegality, impropriety or irregularity
in the impugned order passed by the lower Revisional
Court.
11. The petitioner's case in MC No.49/2007 is that
the respondent failed to maintain her, despite having
sufficient means. Hence, the respondent is liable to pay
an amount of Rs.6,43,001/- towards reasonable and fair
provision of maintenance as provided under the Act.
12. The respondent resisted the maintenance case
by contending that as per Ext.D1 agreement executed
before the Deputy Superintendent of Police, Kasaragod,
all the disputes between the parties were settled and the
respondent pronounced talaq. Therefore, he was not liable
Crl.R.P. No.559 of 2011
to pay any amount under the Act. Hence, the
maintenance case was only to be dismissed.
13. The Trial Court accepted the defence of the
respondent, but the lower Revisional Court, after
analyzing Ext.D1 agreement and finding that the
respondent had not paid any amount towards maintenance
to the petitioner and the respondent was doing business
abroad, the lower Revisional Court held that the
petitioner was entitled to maintenance @ Rs.2,000/- per
month.
14. Accordingly, the lower Revisional Court
directed the respondent to pay the petitioner a sum of
Rs.1,20,000/- towards reasonable and fair provision of
maintenance @ Rs.2,000/- per month for a period of 5
years and pay Rs.2,000/- per month for three months
Crl.R.P. No.559 of 2011
during the period of iddat and pay Rs.1,001/- towards
mahar.
15. It is trite that the right of maintenance cannot be
waived or relinquished by way of an agreement as it is
against public policy and is hit by Sec.23 of the Indian
Contract Act. Thus, the defence of the revision
petitioner/respondent was found to be untenable and
unsustainable in law.
16. There is no error, illegality or impropriety in the
the conclusions arrived at by the lower Revisional Court
that the revision petitioner/respondent is liable to pay
maintenance to the petitioner under the Act. Thus, I
confirm the order of the lower Revisional Court.
17. When the revision petition came up for
admission on 23.02.2011, this Court stayed the execution
Crl.R.P. No.559 of 2011
of the order passed by the lower Revisional Court, subject
to the condition that the revision petitioner deposits an
amount of Rs.75,000/- before the Trial Court within two
weeks from the date of order. It is submitted that the
revision petitioner has complied with the interim order.
13. In the result,
(i) The revision petition is dismissed.
(ii) The order passed by the lower Revisional Court
in Cr.R.P. No.10/2008 is confirmed.
(iii) The revision petitioner is directed to deposit the
amount ordered by the lower Revisional Court within a
period of two months from today.
(iv) Needless to mention, if the revision petitioner
has deposited any amount pursuant to the orders of this
Court, only the balance amount need be deposited.
Crl.R.P. No.559 of 2011
(v) If the amount is deposited, the same shall be
released to the 1st respondent, in accordance with law,
failing which the first respondent would be at liberty to
execute the impugned order.
sks/16.10.23 Sd/-C.S.DIAS, JUDGE
